Appellate Practice

Good case management requires thinking about a potential post-trial phase, be it after a dispositive motion, after a verdict from the court or a jury, or on an agreed statement of facts.  Often in the appellate courts, we subscribe to the rule that good writing is clear thinking made visible. It is the product of a discipline that relies on many different skills. Writing is complicated; that is why it is difficult.

Mr. Murphy is the Chair of the Amicus Committee of the Massachusetts Academy of Trial Attorneys and a member of the Amicus Brief Committee of the Massachusetts Bar Association. He has briefed and argued many cases – either as counsel of record or as amicus curiae counsel – at all levels of Massachusetts and federal courts, except he has briefed but not yet argued in the Supreme Court of the United States.

Following is a list of the firm’s appellate cases:


Conte v. Dayton Power & Light Co., 215 F. 3d 628 (6th Cir. 2000)

This case involved a worker painting an elevated water tower while suspended in a boatswains chair at a manufacturing plant in Ohio. In the process, his extension pole came in contact with energized power lines. We sued the owner of the plant and a local utility company and the jury awarded the client $3,500,000.  We later settled with one defendant and the other appealed to the Sixth Circuit where Mr. Murphy argued the case. The panel affirmed the award and set the standard under Ohio’s settlement statute, in part because the pre-trial settlement offer from that defendant was a mere $3.00.

Fyffe v. Massachusetts Bay Transportation Authority, 86 Mass. App. Ct. 457 (2014)

After the jury returned a seven-figure verdict for the plaintiff, the MBTA moved for a new trial based on allegedly inappropriate statements during the opening, comments during the evidence, and arguments during the closing by trial counsel. The trial judge denied the motion and Mr. Murphy served as appellate counsel for the plaintiff.

Humphrey v. Florence Byron, et al, 447 Mass. 322 (2006)

Plaintiff in this case was a commercial tenant’s employee who had fallen down a flight of stairs in an old building and later died.  The trial court allowed the motion for summary judgment and Mr. Murphy argued the appeal in the Supreme Judicial Court which affirmed; it declined plaintiff’s invitation to expand the duty of care of the property owner, holding that such owners owe no duty to maintain space leased to commercial tenants.

Leary v. Father John J. Geoghan, App. Ct. No. 2001-J-0688

Mr. Murphy represented two non-clerical defendants in the litigation brought in the late 1990s by a group of plaintiffs claiming to be sexual-abuse victims of the late Father John J. Geoghan. A non-party mediator brought an interlocutory petition for relief from the Superior Court Judge’s denial of his motion for a protective order. Mr. Murphy argued the case; a Single Justice denied the requested relief.

McManus v. David W. Adams, et al, 47 Mass. App. Ct. 1111 (1999)

The issue in this case was the measure of damages in a claim under G.L. c. 242, § 7, a statute which provides that a “person who without license willfully cuts down … trees, timber, wood or under-wood on the land of another…” is strictly liable to the land owner. The Appeals Court said that the measure of damages was simply “timber value” but that has since changed. There was no oral argument in this case.

Roberts v. Delta Air Lines, Inc., 599 F. 3d 73 (1st Cir. 2010)

Plaintiff in this case was a “Song” Flight Attendant who was injured when preparing for take-off on a “Delta” flight. She claimed Delta was not her employer but was liable in tort as a third-party. The trial judge concluded that she was a “loaned servant” from Song working for Delta, who was her “special employer.”  Mr. Murphy argued the case to the First Circuit which affirmed, recounting the parameters of the workers’ compensation exclusivity rule.

Zackular v. Fun Services, Inc., et al, 60 Mass. App. Ct. 1106 (2003)

The plaintiff in this product liability case broke her neck when she dove head first while traversing an inflatable obstacle course at an office outing.  The lower court allowed Mr. Murphy’s motion for summary judgment, relying on the “open and obvious” rule in effect at the time. The Appeals Court affirmed, finding no abuse of discretion in the lower court.


Aleo v. Toys “R” Us, Inc., et al, 466 Mass. 398 (2013)

In this products liability case a jury awarded plaintiffs $2,000,000 in compensatory and $18,000,000 in punitive damages. The central appellate issue was whether punitive damages based on gross negligence should be evaluated differently from punitive damages based on willful, wanton, and reckless conduct. Acknowledging that the compensatory/punitive ratio was close to the limits of due process the Supreme Judicial Court upheld the award in light of the severity of the gross negligence and concluded that it is a “jury’s function to make the difficult and uniquely human judgments that defy codification” which function lends “discretion, equity, and flexibility” to the legal system.

Auto Flat v. Hanover Insurance Co., 469 Mass. 813 (2014)

In this case an insured made a bad-faith claim against its insurer. After years of letters followed by litigation the insurer paid the entire claim. The issue on appeal was whether the insured was entitled to recover damages where, after it litigated a claim for wrongful denial of coverage but before trial, its insurer fully reimbursed the insured for its losses such that (or so it claimed) there are no “actual damages.”

Estate of Steven Gavin v. Tewkesbury State Hospital, et al, 468 Mass. 123 (2014)

Plaintiff’s wrongful death suit against the State Hospital was dismissed because the presentment under the State Tort Claims Act, otherwise timely and proper, was fatally defective because it had not been made by the duly-appointed representative of the estate. The Appeals Court, in a 2-1 decision, affirmed. The Supreme Judicial Court reversed, and said that the presentment was proper and remanded the case to the trial court.

Klairmont v. Gainsboro Restaurant, Inc., et al, 465 Mass. 165 (2013)

An intoxicated patron fell to his death in a bar with a number of building-code violations. The jury found the bar negligent but decided that its negligence had not caused the patron’s death. Post verdict, the trial Judge found for the estate and made a substantial award in the G.L. c. 93A claim tried to the bench. This amicus brief supported the plaintiff arguing that the jury’s answer on causation did not preclude the Judge’s 93A findings. The Supreme Judicial Court agreed that the court could make a separate 93A finding, the jury verdict notwithstanding, but vacated the judgment and remanded the case for further findings on damages.

Pleva v. P&F Brothers Industrial Corporation, Settled at argument – SJC No. 09602

The issue in this appeal was whether a defendant-manufacturer, which purposefully defaulted in a products liability case against it and its co-defendant distributor, could obtain relief from a default judgment based on a verdict in favor of that distributor, where the default adversely affected the plaintiff’s ability to conduct pre-trial discovery. Only after filing the amicus brief did the defendant make any settlement offer; the case settled on the day before oral argument for an undisclosed sum.

Reckis v. Johnson & Johnson, et al, Pending: SJC No. 11677

A young girl suffered devastating injuries from toxic epidural necrolysis as a result of taking an over-the-counter medication which, a jury decided, was improperly labeled as it failed to warn her of that risk. The compensatory award was $50 million for the child plus $6.5 million for each of her parents. The manufacturer appealed, claiming the failure-to-warn claim under State law was preempted and that the jury’s award was excessive. Oral argument is December 1, 2014.

Roes v. Children’s Hospital, et al, 469 Mass. 710 (2014)

Plaintiffs in this case are a group of victims of a pedophile who, before he abused them, had worked for the defendant-hospital. Despite it knowing of his abuse of prior victims, it neglected to inform his new employer – where he later abused the plaintiffs – of his having abused the prior victims. The issue is whether the defendant-hospital had a duty to inform the new employer of the pedophile’s prior bad acts.

Rose v. Highway Equipment Company, 86 Mass. App. Ct. 204 (2014)

The trial judge in this products liability case charged the jury that was to find the facts under two legal theories, negligence and breach of warranty, that the “unreasonable use” or Correia defense is the “implied warranty version of the contributory negligence defense.” The appeal challenged the instructions, claiming that they “meld[ed] improperly the theory of negligence with the theory of warranty as expressed in G.L. c. 106, §§ 2-314 – 2-318, and thereby [ ] undercut the policies supporting the statutes.” Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 354 (1983).

Sanchez, ex rel. v. United States of America, 740 F. 3d 47 (2014)

Sanchez’s wife died in child birth at a community health clinic which, unbeknownst to him, employed doctors who had been deemed federal employees. Thinking that he would be held to the State three-year statute of limitation and not the Federal Tort Claims Act’s shorter period, he sued the doctors in state court. The U.S. Attorney removed the case and got it dismissed based on the two-year federal statute. The First Circuit affirmed, following its interpretation of the doctrine of equitable tolling, and entered judgment for the Government.

Sanchez, ex rel. v. United States of America, cert. den. 574 U.S. __ (2014)

This petition for a writ of certiorari to the First Circuit claims that there is a split in the several federal courts of appeals as to whether the doctrine of equitable tolling of the statute of limitations should apply so that the plaintiff gets his day in court.

Sheehan v. Weaver, 467 Mass. 734 (2014)

Mr. Sheehan was hurt when he fell on an exterior stairwell in a mixed-use commercial/residential building which stairwell was not up to code. The case turned on whether the strict liability provisions of G.L. c. 143, § 51 were limited to one fleeing from a fire, as an obscure footnote in an old case had intimated, or not.  The Supreme Judicial Court concluded that § 51 did not apply exclusively to one fleeing a fire, but also held that it did not apply in this case as the term “building” did not include this small-scale residential structure, even though it was in part commercial.

Wentworth v. Henry C. Becker Customer Builder, LTD, 459 Mass. 768 (2011)

The issue in this construction-site case was whether a general contractor who paid workers’ compensation benefits to an uninsured subcontractor’s employee, pursuant to G. L. c. 152, § 23, was immune from tort liability. A Superior Court judge said yes, the Appeals Court concluded that that was in error, and the Supreme Judicial Court granted further appellate review. It concluded that the immunity statute applies only where the employee is directly employed by the insured; it vacated the judgment for the defendant and remanded the case for trial.

Wilkins v. City of Haverhill, 468 Mass. 86 (2014)

The plaintiff in this case, while on her way to her son’s parent-teacher conference in a public school, slipped and fell on an icy sidewalk as she entered the building.  The question was whether her attending the conference was for an “educational purpose” as that term is used in the recreational use statute, such that the City was immune from liability. The trial judge said yes and dismissed the case. The Supreme Judicial Court said no; it reversed and remanded the case for trial.